Statements made by witnesses during an identification parade conducted by a Magistrate under Section 164 of the Code of Criminal Procedure are not substantive evidence.

( 1 ) THIS is an appeal by five appellants who were tried by a learned Sessions Judge sitting with a jury upon a charge of dacoity under Section 395 of the I. P. Code. The appellant Nandalal Bera was also charged with an offence under Section 412 of the I. P. Code. Nandalal Bera was found not guilty and acquitted upon the charge under Section 395 of the Indian Penal Code, but he was found guilty upon the charge under Section 412 of the Indian Penal Code. He was convicted by the learned Sessions Judge and sentenced to three years' rigorous imprisonment. The other four appellants were found guilty of dacoity and were convicted by the learned Sessions Judge and each sentenced to five years' rigorous imprisonment. It is from these convictions and sentences that the present appeal has been preferred.

( 2 ) THE charges arose out of a dacoity which was said to have been committed on Falgun 7, 1356 B. S. corresponding to February 19, 1950, at about 11 p. m. at the house of one Umesh Chandra Maity in the village of Chingurdania. On that night the inmates had gone to bed, the owner Umesh Chandra Maity being away from home. It is said that these dacoits came to the house and seized and bound the owner's son Birendra. They then broke into the house and looted it. Eventually the dacoits made off and villagers rushed to the scene where, it is said, the inmates told them that they had recognized a number of the dacoits.

( 3 ) A First Information Report was made at the thana fifteen miles away at about noon on the following day by Birendra, the owner's son, who as I have stated was one of the inmates of the house when the dacoity took place.

( 4 ) INVESTIGATION took place and the five appellants were arrested and were placed for identification at a test identification parade. In due course they were committed to stand their trial in the Court of Sessions and were tried, convicted and sentenced as I have indicated.

( 5 ) THE learned Sessions Judge at the conclusion of the evidence charged the jury at considerable length and it has been contended by Mr. Sudhangsu Mukherjee who appears on behalf of the appellants that the learned Judge was guilty of a grave misdirection in dealing with the evidence relating to the test identification parade. That parade was conducted my a Magistrate and as each witness was called upon to identify he pointed out various people and stated what part those persons had played in the dacoity. The learned Judge in his charge to the jury refers to the statements made by the various witnesses to the Magistrate at the time of identification. He stated:"at the T. I. Parade on 7-3-50, this accused (referring to Pinju) was identified by P. W. s. 2,3, 7-10, P. W. No. 2 saying that he was beaten with a lathi by this accused, P. W. No. 3 saying that this accused was loitering in the verandah with a lathi and moshal, P. W. No. 8 saying about this accused's threat with a dagger, P. W. 9 saying that this accused was loitering in the verandah with a lathi, P. W. 10 saying that this accused threatened with a dagger, P. W. No. 7 said to the Magistrate that this accused stood outside the verandah; but here he says that this accused gave him a lathi blow. "

( 6 ) LATER referring to the appellant Hanif the learned Judge stated: "p. Ws. 3, 7 and 9 identified him at the T. I. Parade, P. W. No. 7 stated to the Magistrate, while identifying this 'accused, that this man beat him with a lathi. "

( 7 ) WITH regard to the accused Gunadhar Das the learned Judge stated that he was identified at the test identification parade by P. Ws. 2, 8 and 9 and their statements to the Magistrate were mentioned to the jury.

( 8 ) THE learned Judge also pointed out that the appellant Girish Das had been identified by P. Ws. Nos. 2, 7 and 9 and the learned Judge mentioned to the jury what each of the witnesses told the Magistrate at the time of the identification.

( 9 ) IT is clear from the charge that the statements made by these witnesse